Opinionista• Carolyn Raphaely • 8 December 2016

Departmental Reports – where truth hides in plain sight

Anyone taking the time to mine the turgid annual reports of SA’s bloated bureaucracy will occasionally be rewarded with a gem – a valuable nugget of information which will make the mostly tedious task worthwhile.

Trawling through tables of official-on-inmate violence in the recently published 2015/2016 annual report of the Judicial Inspectorate for Correctional Services (JICS) reveals a dirty little secret: A staggering 316% increase in assaults on inmates by Department of Correctional Services (DCS) officials over the numbers recorded the previous year.

Repeated requests by the Wits Justice Project (WJP) for an explanation from JICS over the course of a week failed miserably. Instead, contradictory and confusing numbers ranging from a zero percentage increase to 34% were proffered by four senior officials.

Either JICS officials are unaware of the genie unleashed in their latest report, innumerate, or hell-bent on concealing the truth. In the absence of any official explanation, the only other possibility is that the tables contained in the reports are incorrect, or the reporting structures so opaque, technical and confusing as to be incomprehensible.

Though the previous 2013/14 JICS annual report highlighted a bad-enough 79% increase in official-on-inmate assaults over the previous year – a detail the report describes as “worrisome” – the most recent report makes no mention of what appears to be a disturbing upward trend of violence and brutality behind bars. (The 2014/2015 report cites a total of 195 incidents of official–on-inmate assaults and the 2015/2016 report cites 811 incidents.)

So what is the reasonable person supposed to assume from an apparent 316% increase? That the statistics lie? That the department has improved its reporting methods? No comment was forthcoming from the prison oversight body. In fact, it took a tame geek with a special interest in torture and assault behind bars to ferret out the figures and flag the bad news.

The good news, according to JICS National Manager Legal Services Umesh Raga and Manager of JICS Complaints Unit Shariefa Wesson, is that a zero percentage increase in official-on-inmate assaults was recorded. If this is indeed the case, why not shout about it from the roof-tops? Why does the report ignore this astounding achievement when a decrease of such magnitude would certainly be worth bragging about?

To add to the confusion, Civil Society Prison Reform Initiative (CSPRI) researcher Gwénaëlle Dereymaeker, a leading expert on oversight and law enforcement calculates a 25% increase in allegations of official-on-inmate assaults based on tabulated figures of reports received by JICS Department of Legal Services between 2014/15 and 2015/16.

“JICS reporting structures and annual reports are very technical and confusing to the layperson,” Dereymaeker says. “Also, the manner of reporting changed in 2015/16, making a comparative exercise of publicly available data even more difficult. The confusing information available in the annual reports does not assist the public, or Parliament, in understanding the issues and ensuring that DCS is held accountable.”

Where the truth lies is anyone’s guess. The JICS annual reports raise many more questions than they do answers. One thing is clear: The country once regarded as “the darling” of the international human rights community appears to have learnt little from the lessons of the past. In the dark old days, political prisoners like Neil Aggett and Steve Biko were routinely tortured, beaten and assaulted; now criminals suffer the same fate.

In spite of legislative change and a new Constitution, assaults on inmates by prison officials continue unabated. And the reason for the lack of accountability and high levels of brutality behind bars? The legacy of apartheid? Lessons learnt during the struggle years in camps like Quatro – one of the most feared ANC camps where beatings, floggings and assaults were the order of the day? Gang warfare? Impunity?

Make no error, JICS’ recently-appointed Inspecting Judge Johann van der Westhuizen will make it his business to find out. A boxing fan since childhood, the retired Constitutional Court Judge has entered the ring intent on instilling a human rights-based culture in JICS, ensuring officials are accountable and that they understand that prisoners’ rights are indivisible from human rights.

In Brandvlei and Beyond, a report researched bycriminologist Dr Elizabeth Grobler and commissioned by DCS, Grobler explains the Brandvlei prison unrest – which resulted in the violent death of an inmate who was kicked in the head by warders and attacked by Rottweilers – in the context of gang warfare.

Grobler also cites the stressful working conditions of DCS officials, a lack of understanding of the use of minimum force legislation, and “pervasive indicators of post-traumatic stress disorder” endured by warders who have witnessed stabbings and attacks, been attacked, or taken hostage and targeted in various ways as contributory factors in an escalating cycle of violence.

The gang warfare explanation is of limited use but no excuse for the death of an inmate – particularly since no investigation into his death has been concluded and none of the implicated officials disciplined two years later. “It is unsurprising that events such as the one at Brandvlei took place and that there are not more of these incidents that escalate beyond containment,’’ Grobler’s report concludes.

Last month, 22 years since the advent of democracy, Judge Lucy Mailula told a JICS conference on torture and assaults in Western Cape prisons: “We wouldn’t think we’d need to be looking at torture now. We’d think human rights are a given… People don’t lose their rights because they’re incarcerated…”

One good sign is that increasing awareness of inmates’ rights has meant that in the past few years civil society and organisations like CSPRI, Sonke Gender Justice, Nicro and the WJP have ramped up the call for increased prison oversight. CSPRI Professor Lukas Muntingh is adamant that independent oversight is the most effective way to prevent torture and assaults behind bars and to promote transparency and accountability.

Right now, JICS’ independence is questionable given that the organisation’s salaries are paid by DCS, the department their job it is to oversee. “JICS doesn’t have the financial resources, capacity or investigative skills to carry out its mandate effectively,” explains one insider.

“There are only four inspectors, who double up as investigators and deal with complaints generated by more than 150,000 inmates in 242 correctional centres around the country. These inspectors conduct about 90 inspections annually but they’re only able to carry out about 20 investigations of all complaints, not just complaints relating to assault.”

By definition, the lack of manpower means investigations have to be random at best. Though SA ratified the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1998, it still has not ratified the Optional Protocol against Torture (OPCAT).

Ratification would necessitate the establishment of a National Preventive Mechanism and establishment of a prison oversight body authorised to conduct unannounced, and announced, visits to places of detention by independent national and international bodies – a significant first step towards preventing the excessive use of force and unnecessary deaths in detention.

“Though the existing legislative framework presents no major obstacles to holding state officials accountable for gross rights violations, officials are rarely prosecuted and convicted for assault, torture and actions resulting in the death of criminal suspects and prisoners,” Muntingh explains. “Prosecution is so rare that a situation of de facto impunity results.”

With statistics about official-on-inmate violence currently as clear as mud and the truth hiding in plain sight, brutality behind bars appears to be an issue requiring urgent oversight and attention. Meantime, the prison oversight body needs to take a long hard look at its reporting methods, which seem to conceal a whole lot more than they reveal. DM

Carolyn Raphaely is a senior journalist with the Wits Justice Project (WJP) based in the University of the Witwatersrand’s Journalism Department. The WJP investigates miscarriages of justice and human rights abuses related to SA’s criminal justice system.

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